October 22, 2009

ABAJ coverage of SCOTUS cases on constitutionality of juve LWOP

In the November 2009 issue of ABA Journal magazine includes this article previewing the two juve LWOP cases to be heard by the Supreme Court next month. The piece is headlined, "Adult Time for Adult Crimes: Is life without parole unconstitutional for juveniles?", and here are excerpts:

In a pair of cases from Florida, Graham v. Florida and Sullivan v. Florida, the court must determine whether Roper’s reasoning — that juvenile defendants are fundamentally different from adult defendants — extends from the death penalty to life without parole. Arguments are scheduled for Nov. 9.

“Life without parole can be considered as death in prison and the penultimate sanction,” says Florida State University law professor Wayne A. Logan, who has written on juvenile life without parole. “The court granting cert in two cases signals its concern about ju­venile justice, which is a welcome development. Life without parole has become a live issue in the wake of the Roper case.”...

Numerous amicus briefs have been filed on behalf of Sullivan and Graham seeking to persuade the court to extinguish LWOP sentences for juveniles. One of the more compelling comes from a group of former juvenile offenders who later achieved success, including actor Charles S. Dutton and former U.S. Sen. Alan K. Simpson. Dutton stabbed a person to death in a street fight at age 17, while Simpson committed arson on federal property, punched a cop and — in his own words — “was a monster.”

“We tried to present the views of several individuals who had been involved in criminal offenses when they were juveniles — some of whom may have been eligible for LWOP under particular state laws — and to explain what that kind of severe sentence would have meant for them,” says Washington, D.C.-based attorney David W. DeBruin, who filed the brief. “The individuals described in our brief had hope because they had the prospect of release. Knowing that they had a chance, they used the time in prison to resolve to do things differently and to obtain skills — and eventually they made outstanding contributions to society.”...

“Roper was wrongly decided, but it is manageable if contained on the death penalty side of the firebreak,” says Kent S. Scheidegger, legal director of the Criminal Justice Legal Foundation, the Sacramento, Calif., group that supports crime victims. But, he adds, Roper “should not be extended at all. These are sentencing policy decisions to be made by the people of the several states through the democratic process. Whether one agrees or disagrees with the decision, it is the people’s to make. Nothing in the Constitution assigns that decision to the federal judiciary.”

But experts agree on the importance of the cases. “There is a tremendous amount at stake in these cases when you consider that life imprisonment without the possibility of parole is almost equivalent to a death sentence and gives the offender no chance of relief or release or hope,” DeBruin says.

Comments

Regardless of what one thinks about the policy here, the criminals have some very difficult practical hurdles to overcome. It cannot be forgotten that these guys are arguing for a constitutional right to parole. Well, if they are going to get that, then there has to be a minimum constitutional standard for "what is parole".

If that standard is basically whatever "parole rights" a state choses to give, well, then how is a discretionary parole system any different from (a) the possibility that the law may change in the future (i.e., to allow these guys to get out) or (b) the existence of some form of executive clemency? If the standard is some sort of rights-based parole system, then how are federal courts going to police that? Additionally, there's the knotty issue of when these offenders are constitutionally eligible for parole consideration--10 years, 20 years? When? Finally, there's a fundamental problem. Clearly, even if the defendants win, the possibility of parole is just that, a possibility. Thus, a defendant could serve a full life sentence even though parole eligible. So what they're really arguing is that some sort of post-conviction happenings make a sentence that is constitutional no longer constitutional as applied to the defendant. The constitution simply doesn't cut that finely.

Adolescents are inexperienced adults. There is no fundamental difference. The lawyer just made that up. Indeed, until 100 years ago, with union rent seeking, adolescents were in adulthood. The unions wanted them out of the labor market, and the teachers wanted them for high school, a worthless babysitting period of wasted time. Any increase in maturity from experience applies to the difference in crime rates between 60 and 80 year olds.

Federalist, I think you have misstated the case. Petitioners aren't saying they have a constitutional right to parole. They're saying that Life with no chance of release is cruel and unusual.

Supposing for argument's sake that they prevail on that argument, the Court won't order the state to create a parole system. I can think of several potential solutions that would cure the infirmity (again, assuming that there is one), and it will be up to the state to decide how to go about it.

I realize that there is a formalist argument that if imprisonment is a constitutional form of punishment (which it clearly is), then the constitution sets no limit on the quantity of it that be meted out. This is Justice Thomas's view, but as far as I can tell, he has not persuaded a majority of his coleagues.

Marc, I don't think so. Let's say the criminals win, and the state says, ok, you can be paroled if you hit 40. Would that be ok? 50? Every 25 years?

Second, what is parole? If the state can simply make it discretionary, how is that any different from LWOP with governor's ability to commute? Or even the possibility that years later, the statutes will change? If it's rights based, i.e., prisoner fulfills conditions, then how are federal courts going to police that???

Posted by: federalist | Oct 23, 2009 11:03:04 AM

Federalist, I realize that some people have difficulty with the concept that judges draw lines—or, to put it differently, that judges judge. They would be far more comfortable if there were no gray areas in the law. But most jurists don't see it that way.

Let's take the Excessive Fines clause. What's excessive? The very existence of the clause means that, in some hypothetical case, $X would be constitutional, but one dollar more would not be. That's what judges have to decide. I am not saying it's easy or an exact science, but the law is full of examples where judges draw such lines.

Marc, the difference is that the constitution doesn't even address the "what is parole" question, whereas it commits to judges the determination of "excessive".

I note that you cannot answer the simple question--what's the difference between a completely discretionary parole system and a system where the governor has discretionary clemency power? Surely, there is no constitutional difference in the identity of the decisionmaker, is there?

Posted by: federalist | Oct 23, 2009 12:12:12 PM

But Federalist, these defendants are not saying that the constitution requires parole. They're saying that the constitution does not permit life sentences in their situation. Parole is merely one way that the state could cure the violation. Deterministic sentences that are less than life would be another way.

There have already been cases (admittedly very rare) where the Court determined that a term of imprisonment was so long that, in relation to the offense committed, it violated the Constitution. I forget the cite, but as I recall, the Court did not impose parole or executive clemency. It merely said, "Given these facts, you can't lock someone up for this long."

Marc, that's too cute by a half, and I suspect you know it. The issue, generally speaking, is whether LWOP is kosher. And the caselaw actually helps to frame the issue--where parole is available, an Eighth Amendment violation for a "life" sentence is mitigated (at least in one case, which I cannot remember off the top of my head). Thus, there is a clear distinction between LWOP and life with the opportunity for parole. And certainly a life sentence with a rights-based parole system is constitutional, so my questions are unavoidable.

Posted by: federalist | Oct 23, 2009 2:27:40 PM

Federalist, you are asking the right questions. I am just pointing out that the Court could quite easily rule in petitioners' favor while leaving those questions for the state to resolve in the first instance.

If the four left-most Justices are at all strategic, they are unlikely to have voted for cert. unless Kennedy voted for cert. Kennedy is unlikely to have done this unless he was at least somewhat sympathetic to the petitioners' view. That doesn't make him a slam-dunk to rule in their favor, but clearly he doesn't see these questions as insuperable obstacles.

They aren't insuperable obstacles, when one can simply wave a magic wand as was done in Atkins and Simmons. But the problem is that the opinion cannot be too ridiculous.

And I don't see how you leave this all to the states.

Posted by: federalist | Oct 23, 2009 3:18:05 PM

Oh, come on, Federalist. I understand your viewpoint and respect it.

But I'm sure you can easily find plenty of Supreme Court opinions that declared something unconstitutional without declaring what the remedy should be. Were the Court to solve the problem itself, one might call it judicial activism.

The Founders left "cruel and unusual" undefined. That means invariably there will be intelligent disagreements about what it means.

What kind of day is this? I agree with Kent, federalist, and The Supremacy (capitalization is important) all on the same topic.

I think I need a stiff drink ;-)

Posted by: Daniel | Oct 23, 2009 4:50:00 PM

"The dot" links to a very interesting article, which I hope Prof. Berman will make the subject of a separate post.

I am appalled (I don't mean to be overly dramatic, but I actually am appalled) that Governor Perdue is so openly and proudly flouting the rule of law. She is basically saying: I know the law says the State is required to release these people, but I think they are bad, so I am going to stonewall, refuse to do it, and present any contorted legal rationale I can come up with to justify my actions. What happened to government of laws, not (wo)men???

In reality, I believe that the Governor and her so-called legal advisers (who ought to be resigning in protest) know these people have to be released, but they are going to force the courts to order it so they can wave their tough-on-crime flag and then bash the courts come election time. A profile in cowardice and pandering.

Posted by: nc atty | Oct 23, 2009 6:35:45 PM

Marc, I'll give you the last word. The bottom line here is that there is a significant difference between LWOP and a life sentence--both in the caselaw and in people's everyday understanding. And it's not seriously contended that a life sentence with possibility of parole is unconstitutional. Thus, if the Supreme Court is going to hold for the defendants, it will have to deal with a constitutional standard for "what is parole". And if it chooses that parole purely discretionary, then there is no functional difference between that and executive clemency, or even the possibility of legislative change, for that matter. If it chooses a "rights-based" parole, then federal courts are going to have to monitor that. Do we want federal courts being parole arbiters?

Posted by: federalist | Oct 24, 2009 11:05:38 AM

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